Duterte’s Proposed EO on FOI: Not Very Well-Informed

FOI_is_dead

FOI Funeral March on August 26, 2015. Photo by Lito Ocampo.

 

THE PHILIPPINE press has been promoting the passage of a Freedom of Information (FOI) act for years, the idea being that if there’s a law that would ensure transparency and access to government information, citizens could monitor government more closely and help check corruption, while the media could better serve the public.  When President-elect Rodrigo Duterte announced on May 11 that he would assure public access to government-held information by issuing an executive order mandating freedom of access to such information, one would have expected the press to go to town with it. That was not the case; for the most part, while it reported Duterte’s promise to issue an executive order (EO), the press pretty much left it at that.

The key points the press should have addressed are the previous experiments with access to information through an EO; the policy failures that led to the defeat of the FOI bill in Congress; the existing legal instruments that can approximate the intent of an FOI law; and how these are faring.

Unfortunately, with so much media hype on the need for an FOI law and the failure of the outgoing administration to make it a priority, the press may not actually be that well-informed about the issue and its history.

FOI by EO

Hardly any of the reports provided any background on the long but failed process. A presidential EO would in fact not be new. In 1993, former President Fidel V. Ramos issued an EO directing the implementation of a transparency policy in government offices and government-owned and controlled corporations (GOCCs). While the difference of this EO to that of Duterte’s cannot obviously be established yet, it should have been mentioned in reports as background information.

Indeed, given the seemingly open access Duterte gives journalists, some of them should have pressed him or his key people about the EO idea to get the specifics of the planned issuance. For instance, the press could have noted that such an EO would be limited to the executive department and would exclude the legislature, which raises the question of what the implications of this fact would be, especially since Congress is responsible for the passage of an FOI law.

Neither were legislators interviewed to discuss the possible implications of the EO on the status of the FOI bill, especially since Duterte said that once an EO is in place, the actual law would no longer be needed. This and other issues, such as whether an EO would also apply to the judiciary, should have been explored.

Notably, VERA Files published on May 25 an article that discussed the progress of the FOI bill during the outgoing Aquino administration. The report tracked how far the bill went in the 15th and 16th Congresses– its being repeatedly stalled in the House of Representatives, and its having been discussed only 19 times (out of the possible 52 times as provided under congressional rules) by the Committee on Public Information in both congresses.

Code of Ethics

The Right to Know, Right Now (R2KRN) Coalition supported Duterte’s idea, but suggested a clarification on the interpretation of the 15-day response to an information request as provided for in Republic Act 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees.

Section 5(e) of the code provides that, “All public documents must be made accessible to, and readily made for inspection by the public within reasonable working hours.”

Meanwhile, Section 5(a), the provision on the response to request says that, “All public officials and employees shall, within fifteen (15) working days from receipt thereof, respond to letters, telegrams, or other means of communications sent by the public. The reply must contain the action taken on the request.”

A 2011 study by the Philippine Center for Investigative Journalism (PCIJ) noted that the law lacks teeth. For seven months, PCIJ audited how 27 national agencies responded to requests for access to government-held information.

“The audit yielded results that surprised and disappointed at the same time, such as the integrity agencies turning out to be more secretive about their SALNs (Statement of Assets, Liabilities and Net Worth), as well as some agencies more ready to share the SALNs of other officials they have in custody but not the SALNs of their own agency bosses,” PCIJ said.

Moreover, it added, only 20 of its requests (out of 35) were granted, “making for a poor 57-percent approval rate. Several of these approvals also took place well beyond the 10 working days deadline in law for officials and agencies to act on requests for SALNs, and the 15 working days deadline in law for them to act on requests for other documents.”

In 2003, then President Gloria Macapagal-Arroyo issued a memorandum circular (MC) mandating agencies to publish guides and workflow charts for citizens availing of the services of government offices. Whether this is being followed dutifully is another subject for investigation.

Genuine Openness?

Since its introduction in 1987, the FOI bill has languished in Congress and still awaits passage into law. It now seems apparent that the previous EO, and the codes of ethics and other transparency instruments have not fostered genuine openness in government. The press should have asked why and provided some answers. But journalists need to know much more about these issues. Only by weighing in with their views can they do a better job of informing and enlightening the public.